The Brave New World of Electronic I-9s

In April 2005, Public Law 108-390 came into effect, permitting employers to store electronic versions of completed I-9 forms rather than paper versions. Specifically, the new law allows I-9s, which are the forms that employers must complete to show that an employee is eligible to work in the U.S., to be completed and signed electronically. No regulations have as yet been promulgated by U.S. Immigration and Customs Enforcement. However, in June 2006, ICE issued an interim rule that mirrors its previous guidance on this matter. According to the interim rule, employers who choose to sign and store I-9s electronically should follow this guidance until final regulations are published.

The electronic I-9 law did not change any of the previous requirements for employers regarding the completion of I-9 forms for all employees hired after November 6, 1986.

The interim rule allows employers the option to continue to complete I-9s on paper while storing the forms electronically, although ICE has not yet clarified whether such paper versions may be discarded. Alternatively, under the new law and pursuant to the ICE guidelines, employers may now both complete and retain I-9s electronically.

However, the guidance stops short of identifying which systems will be acceptable under the law. ICE acknowledges in its guidance that there is no single government-wide electronic signature or storage protocol. The ICE guidance suggests that employers may wish to adopt the electronic storage and signature standards of a federal government agency, such as the Internal Revenue Service, until ICE issues the relevant regulations on this topic. U.S. Citizenship and Immigration Services has implemented an electronic signature mechanism for its "e-filing" procedures that requires users to "e-sign" electronic documents by selecting a checkbox that indicates approval of the information contained in the form. The ICE guidance mentions signature methods such as electronic signature pads, personal identification numbers, biometrics and "click to accept" dialogue boxes. The ICE guidance also suggests that employers use a quality assurance program to evaluate their electronic signature and storage systems to ensure integrity.

With respect to I-9 maintenance for inspection purposes, ICE suggests that employers use indexing systems and employ printing functions so that employers will be able to access and print hard copies of specific I-9 forms upon the request of the government—typically meaning ICE or the Department of Labor. As HR readers know, upon notification of an audit, employers are required to produce I-9s and requested supporting documents for inspection within three business days. The ICE interim rule on electronic I-9s states that at the time of inspection, "Forms I-9 must be made available in their original paper, electronic form, a paper copy of the electronic form, or on microfilm or microfiche." In addition, the interim rule states that employers must provide to requesting government agencies the "resources, such as hardware and software, necessary to locate, retrieve, read and reproduce any electronically stored Forms I-9."

Even assuming that the final regulations will simply adopt the interim rules, there are still a number of open issues that the regulations, once published, will address—or so employers and their counsel hope. The first open issue is that the types of electronic storage that would be allowed are not specified. Second, the law does not indicate how electronic signatures will be handled, and the interim rule does not provide definitive standards. Finally, nothing issued thus far by ICE indicates clearly whether electronic storage will be applied retroactively—in other words, whether electronic storage of I-9s will be permitted for existing I-9s.

Employers who are considering implementation of electronic I-9s should read the ICE interim rule very carefully and review the I-9 systems of the electronic I-9 storage service providers to ensure that whatever system is chosen will be compliant with ICE guidelines. In particular, they should note the Section C of the interim rule.

Finally, it bears repeating that the law regarding electronic I-9 storage and signature protocol is skeletal, and that the ICE interim rule does provide definitive legal guidance to employers. Employers and counsel have been waiting for a final decision for quite some time. That word could come today, or years from now. But until the final regulations are published, employers should consult with immigration counsel to weigh the pros and cons of implementation of an electronic I-9 storage system.

If implementation is chosen before the final rules are issued, employers will have to review the final regulations very carefully to determine what changes, if any, must be implemented to bring an existing electronic I-9 system into compliance.